SHOULD TEEN KILLER GO TO PRISON FOR 65 YEARS?

Convicted murderer and co-defendants face judge Friday

San Diego 
Sending a 19-year-old to prison for the rest of his life for robbing and shooting a college student who responded to a phony Craigslist ad is “cruel and unusual punishment” and a violation of his constitutional rights, the teenager’s lawyer contends.

Rashon Abernathy is one of three defendants convicted of murder and other charges in connection with the death two years ago of 18-year-old Garrett Berki, who was robbed and killed after he answered the online ad for a laptop computer.

Abernathy was the shooter, although he contended in trial that the gun went off accidentally.

He and his co-defendants — Seandell Jones and Shaquille Jordan, both 19 — are expected back in San Diego Superior Court on Friday, ﻿when a judge will consider a motion for a new trial and, if that motion is denied, order their sentences.

Abernathy faces the longest potential sentence: 65 years to life.

But the attorney who represented him in trial, Kathleen Coyne, has argued in court and in documents submitted to Judge Kerry Wells that such a term would violate Abernathy’s equal protection rights, given his age. He and the other defendants were 17 at the time of the murder but were charged as adults.

Coyne noted that the U.S. Supreme Court has prohibited the death penalty for crimes committed before a defendant’s 18th birthday, and for those with low intellectual function.

The high court also has struck down mandatory sentences of life in prison without parole for juveniles convicted of non-homicide offenses and for murder.

Coyne has said that the maximum sentence for which Abernathy is eligible — and the prosecution has argued he deserves — could exceed his life expectancy. In court documents, she cited information from the National Center for Health Statistics that puts the life expectancy for a black male born in 1993 at 64.6 years. Abernathy is an African American.

“If defendant is sentenced to the maximum sentence possible of 65 years, it can be said with fair certainty that he will not live long enough to become eligible for parole,” said Coyne, in documents filed last month.

She argued that Abernathy should be sentenced to 25 years to life, or at most 50 to life.

“This is one of those rare cases in which the court must invalidate the draconian sentence imposed for crimes committed by a minor,” Coyne wrote.

Other defense lawyers in the case have made similar arguments for their clients. They said that a law enacted in January in California allows juveniles who have been tried as adults and sentenced to life without parole — a harsher sentence than what the teens in this case face — to apply for resentencing after serving 15, 20, 24 and 25 years.

That means that young offenders sentenced for committing “the most grievous of offenses,” according to the documents, would be eligible to apply for parole four times before Abernathy, Jones and Jordan would become eligible for their first parole hearing.

Coyne has since retired from the Public Defender’s Office and has been replaced on the case by Deputy Public Defender Mehrdad Ghassemkhani, who has asked to postpone Abernathy’s sentencing. He has told the court, however, that he is prepared to go forward on Friday with a motion for a new trial.